Joint Enterprise – Guilt by Association? What will th...

Joint Enterprise – Guilt by Association? What will the Supreme Court do later this month?

Supreme Court

by Catarina Sjölin (Nottingham Law School) and Felicity Gerry QC (Charles Darwin University)

Next week the Supreme Court will have the chance to put right a judicially-created injustice when the appeal of Ameen Jogee is heard. We are fortunate enough to be part of the team representing Mr Jogee and argue that clear-eyed assessment of the law by the Supreme Court is long overdue. The law of “joint enterprise” strikes fear into the heart of undergraduates. The phrase is conceptually nebulous. For the legal practitioner it is either accommodatingly broad (when prosecuting) or distressingly lacking in justice (when defending). For the person caught up in the process it can be bewilderingly harsh and illogical.

What is the law on joint enterprise?

As a defendant does not necessarily commit an offence entirely alone, the law has had to decide how to deal with others with varying levels of involvement in the offence. So far, so obvious. English criminal law puts participants initially into one of two categories: principals and accessories. The principal has the guilty mind (mens rea) and does the external elements of the offence (the actus reus). More than one person can be a principal in which case they are joint principals. For instance, A and B both kick a man on the ground, causing injuries which, taken together, amount to actual bodily harm. A and B are joint principals as they both did the external elements of the offence (assaulting the victim and occasioning him actual bodily harm) and if they both did this with the requisite guilty mind (intending or being subjectively reckless as to the assault) they are both guilty of the same offence (here, assault occasioning actual bodily harm) by the same route. Sometimes, this – joint principals – is what is meant by joint enterprise.

But it may be that A and B are not quite joint principals, even though they are jointly committing the offence. Taking a different scenario, where B goes into a house to burgle it and A stands lookout outside, A has not done the external element of burglary (entering as a trespasser) although she is playing a pivotal role in its execution. A cannot be a principal, but is closely connected to the offence; she is an accessory. In this situation A has abetted B in B’s commission of the burglary. This is a form of basic accessorial liability (“BAL”). This is often explained as “you were in it together” and overlaps with the doctrine of “common purpose”: A is liable for B’s actions which were in pursuance of their common purpose.

The “common purpose” strand of liability grew out of poaching and riot cases where A and B were both members of a group which acted with a common purpose (rioting or poaching) during which B killed someone who tried to stop the group. A would be convicted on the basis that the act of one of the group was the act of all. Although reasoning is rather lacking in these cases from the 16th to the 18th century, the common thread appears to be that the poachers or rioters shared a common intention to resist all opposition. The killing of someone trying to oppose them was therefore within their common purpose.

A may, however, be further removed from B’s crime. For instance, if B goes to A and asks to be supplied with a gun to kill V, which A duly supplies and B then uses to kill V, A has not pulled the trigger and caused V’s death (the external elements of this murder) but is involved in the killing by supplying the gun. Again, A is an accessory, this time before the offence takes place rather than while it is going on: A provides the gun knowing that B is later going to use it to kill V. This is basic accessorial liability by aiding B.

A could be further removed either counselling the offence – that is advising, soliciting or encouraging – or procuring it – that is endeavouring to produce the commission of the offence by B. These are the other two ways of being an accessory by means of BAL. These two routes do not currently concern us. All of them get called “joint enterprise”.

So far, so straightforward (if loose with the term “joint enterprise”), but of course life is often more complicated and messy than our examples so far. What if B does not tell A what he has planned? Or if B suddenly does something which was no part of the original plan, explained or not? How does the law determine A’s liability in this situation?

Going back to the supply situation, imagine that A supplies B with some oxygen cutting equipment. A believes that B is going to do something illegal, perhaps cutting up stolen goods with it. In fact, B uses it to break into and steal from a bank. Here A does not know what B is going to do, so should A be an accessory to the bank burglary? These were the facts in a case called Bainbridge [1960] 1 QB 124 in which the Court of Appeal held that what mattered was whether A knew the type of offence which B was going to commit. It was not enough that A knew that B intended an illegal venture. It would also not be enough merely to suspect the type of offence. A must know the essential matters, that is that B has possession of cutting equipment which he intends to use to commit a dishonest offence, and A has acted in a way that indicates she intends B to carry out such an offence (even if she does not know the precise details). Bainbridge’s conviction as an accessory to the bank burglary was upheld. He aided the principal’s commission of the bank burglary.

In common purpose cases B’s actions going beyond the common purpose or intention did not make A liable as an accessory for that offence. A would be liable for B killing a police officer who attempted to stop their riot, but would not be liable for B killing a bystander who shouts at him. However, A might be liable for a lesser offence.

We can see, from these examples, the importance of both A’s connection to the crime and her mental culpability. If she has insufficient knowledge of the essential matters, or only suspects them, she is not an accessory to B’s crime. There is a clear scope to A’s liability; she is not liable for all of B’s actions, only those she knowingly authorises by both her acts and her intention which can be inferred from all the circumstances. This strikes the balance between prohibiting the aiding of others’ crimes with criminalising suspicion or mere connection with a crime.

We now come to the most troublesome and troubling use of the term “joint enterprise”: parasitic accessorial liability (“PAL”). Sadly the inelegant name is far from the greatest problem with this strand of joint enterprise” the law. PAL developed to cover the situation where B does something outside of any plan, express or implied, sometimes referred to as “departure from common purpose”. The “parasitic” element of the name is due to this liability which is supposed to only come into existence when A and B were already jointly involved in offence 1, from which B then departs to commit offence 2. The common purpose doctrine we considered above does not make A liable as B’s actions are outside the common purpose.

PAL does not require knowledge of the essential matters, such as in the bank burglary example, the possession of equipment and an intention by B to use them for offence 2, and does not require authorisation by acts which demonstrate A’s intention. In their place is inserted foresight; suspicion or contemplation of a possibility by A which is taken to provide sufficient mental culpability to justify criminalisation of A for B’s actions, which, by definition, fall outside A and B’s common purpose in relation to offence 1. This is far less mental culpability than is required to convict B who actually commits the offence. It is at its starkest in cases of murder where B must be proved to have intended to kill or cause really serious harm whereas in the new formulation created by PAL, A need only have foreseen the possibility that B might intentionally cause grievous bodily harm. The development of the law conflates contemplation with authorisation so that only the former remains; association with someone who might do something becomes liability for whatever they might do – guilt by association.

The problems with PAL

The conflation of foresight with authorisation is a fundamental flaw in the reasoning in the cases on PAL. This strand of liability developed in cases from the 1950s. From the way the cases developed the concept of PAL it is clear that there was no unifying principle at work. Instead the driver appears to have been the fear of group crime going beyond its intended scope and how to make it as easy as possible to prosecute the group. The result is that when prosecuting in reliance upon PAL the prosecution does not need to particularise what A has done, just the fact of being with B, B’s crime and A’s foresight of the possibility that it might happen. Evidence of that foresight will almost inevitably be inferences from the circumstances where inferences in other cases are usually preserved for deciding intention.

The result has been to give the prosecution wide and simple scope resulting in those on the very periphery of an incident being convicted of serious crimes including murder without regard to foundational principles of knowledge and intention. PAL has effectively trampled over BAL as it is so much easier for a prosecution to put their case on broad PAL grounds rather than the legal framework of BAL. PAL has become joint enterprise. Justice has not flowed from this development. Dr Matthew Dyson who has assisted in our research has called the judicially created changes a legal “race to the bottom”. The Supreme Court is being asked to consider the effect of PAL in the overcriminalisation, particularly of young people who are convicted of murder despite being only tenuously connected to the killing. The argument accepts there has been a murder but raises the important question of how prosecutions can be fairly brought so that the case against each defendant is considered, evaluated and particularised against solid, justified legal principle.

PAL has, unsurprisingly, become a much-criticised doctrine, both academically and more widely in the Justice Committee’s 2012 and 2014 reports, the activities of campaign groups (like Joint Enterprise Not Guilty by Association “JENGbA”) and even documentaries and dramas on television. In Gnango [2012] 1 AC 827 the Supreme Court dealt with what looked very like a PAL case. They decided it was not and thus missed the opportunity to deal decisively with PAL.

In Jogee the Supreme Court has another chance. It has the opportunity to return to the essence of joint enterprise liability by requiring both connection to the offence and culpability based on knowledge of the essential matters as to what B is doing and authorising acts which can demonstrate an intention to participate. Before its PAL tangent, the law dealt relatively well, and clearly, with joint principals and accessories. Clear, fair limits to liability were set.

Importantly, the Supreme Court have before them on 27th of October not just submissions from the prosecution and the defence but also from interveners JENGbA and Just for Kids Law. They have consolidated another appeal on similar issues and we have provided a full history of the development of joint enterprise law with substantial assistance from Dr Matthew Dyson of Trinity College, Cambridge who has researched the area at length. They have before them the tools to reconsider and reshape the law. We hope they use them wisely.

This article was first published on Criminal Law and Justice Weekly.

About the author

Catarina Sjolin is a Senior Lecturer at Nottingham Law School. Her research is on criminal law, including evidence and procedure, with a particular focus on sexual offences and violence.

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